This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1536

State of Minnesota,
Respondent,

vs.

Jeffrey Joseph Weidell,
a/k/a Jeffrey Joseph Weddell,
Appellant.

Filed November 7, 2006

Affirmed

Minge, Judge

Ramsey County District Court

File No. K9-04-4881

Mike Hatch, Attorney General, 1400 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

U N P U B L I S H E D O P I N I O N

MINGE, Judge

Appellant claims that his conviction of possession of a firearm by an ineligible person should be reversed and this matter remanded for a new trial because the jury’s verdict was influenced by the prosecutor’s statements which impinged on his constitutional right to be present at his trial and his presumption of innocence. We affirm.

FACTS

Appellant Jeffrey Weidell was charged with possessing a firearm as an ineligible person and tried by jury. Because the parties stipulated to appellant’s legal ineligibility to possess a firearm, the sole factual issue before the jury was whether appellant possessed a firearm at the time in question.

At trial, during cross-examination of appellant, the prosecutor asked whether appellant had the opportunity to hear all of the state’s evidence before testifying. During closing argument, the prosecutor impeached appellant’s credibility by arguing that appellant had the opportunity to sit through the entire trial and listen to the state’s case before taking the stand. Additionally, during closing argument the prosecutor described appellant’s presumption of innocence as a cloak that is taken away from appellant once the state proves appellant’s guilt beyond a reasonable doubt. Appellant did not object to the prosecutor’s statements during cross-examination or closing argument.

Appellant was found guilty by the jury and sentenced. This appeal followed.

D E C I S I O N

Both of the issues on appeal involve allegations of prosecutorial misconduct. This court will reverse a conviction for prosecutorial misconduct only if the misconduct, “when considered in light of the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). When analyzing misconduct during closing argument, “[w]e look . . . at the closing argument as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence.” State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

At trial appellant did not object to any of the prosecutor’s statements he now identifies as prejudicial misconduct. Generally, a defendant who fails to object to prosecutorial misconduct at trial waives the issue on appeal. Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996). But this court will still review the unobjected-to misconduct to determine whether there is (1) error, (2) that is plain, and (3) that affects substantial rights. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006); State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Here, both parties agree that the prosecutor’s alleged misconduct should be reviewed under the plain error test.

The first issue is whether it was reversible error for the prosecutor to use appellant’s constitutionally protected right to be present at trial to impeach his credibility. The United States Supreme Court has held that a prosecutor’s use of the defendant’s presence at trial to impeach his credibility does not unlawfully burden his Sixth Amendment right to confrontation. Portuondo v. Agard, 529 U.S. 61, 73, 120 S. Ct. 1119, 1127 (2000). See U.S. Const. amend. VI., Minn. Const. art. I, § 6.

However, Minnesota has followed a more exacting standard. State v. Buggs, 581 N.W.2d 329 (Minn. 1998). In Buggs, the prosecutor asked the defendant questions during cross-examination emphasizing the defendant’s opportunity to hear the state’s case, and in his closing argument the prosecutor argued that the defendant “took advantage of his opportunity” to hear all of the evidence before taking the stand. Id. at 341. In Buggs, the supreme court said that the prosecutor’s comments “technically [rose] to the level of inappropriate conduct,” but held that the misconduct was “not sufficiently prejudicial” to warrant reversal. Id. at 340. The court did not reverse because, “in addition to the defense’s failure to object and preserve that issue for appeal, the defense had an opportunity to rehabilitate the appellant on re-direct and to respond to the remarks in closing argument . . . .” Id. at 341. However, the court cautioned prosecutors that “extensive dwelling on a defendant’s presence during the trial may result in reversible error in future cases, especially where there are no facts in evidence to support an inference of fabrication, or there is no opportunity to rehabilitate the defendant.” Id. at 341.

More recently, the court stated:

[A]lthough not constitutionally required, the better rule is that the prosecution cannot use a defendant’s exercise of his right of confrontation to impeach the credibility of his testimony, at least in the absence of evidence that the defendant has tailored his testimony to fit the state’s case. Without specific evidence of tailoring, such questions and comments by the prosecution imply that all defendants are less believable simply as a result of exercising the right of confrontation. The exercise of this constitutional right, by itself, is not evidence of guilt.

State v. Swanson, 707 N.W.2d 645, 657-58 (Minn. 2006). The Swanson court, however, did not find reversible error. Id. at 658. The court noted that the impermissible questioning was limited to two pages of the transcript in a record of more than 1,200 pages, found that direct testimony coupled with DNA evidence linking appellant to the offense made the state’s case “very strong,” and concluded that the jury’s verdict was unattributable to the prosecutor’s misconduct and was therefore harmless error. Id.

Here, the prosecutor cross-examined appellant, asking a series of questions about his presence at trial. The exchange was as follows: “Mr. Weidell, you’ve been present through all of these proceedings, correct? Yes. You’ve heard every single witness testify? Yes. And you heard all of that before you took the stand to testify, right? Yes.” Appellant asserts that the prosecutor implicitly pursued a similar line of argument during closing argument. In response, appellant’s counsel stated:

It suggested that [appellant] has the opportunity to sit through everybody’s testimony and construct [his testimony] based on what he’s heard.

Well, it’s called the “burden of proof.” The State goes first, they have to prove their case. We don’t have the opportunity to go up first and create the terms of the “it.”

Believe me, I’m sure he didn’t want to have to sit here and listen to this.

Finally, the state pursued the argument again in its short response to appellant’s closing argument, this time explicitly:

Now, [appellant’s counsel] talked about the [appellant] listening to all of the testimony before he testified and that he doesn’t really have a choice because that’s kind of how the system is set up; yup, true.

But you know what? It’s also true that he sat in the courtroom and listened to everybody else testify. He saw every piece of evidence you received by the Court and he did know all of that. He heard everything you heard before he had to take the stand.

Here, respondent does not dispute that the prosecutor’s statements regarding appellant’s presence at trial are error under Swanson. But because Swanson, according to respondent, marked a change in the law and was decided while this appeal was pending, respondent contends that the prosecutor’s statements were not plain error. Appellant agrees that Swanson marked a change in the law, but argues that the prosecutor’s statements were still plain error.

Swanson does not represent a marked departure from precedent. Buggs makes clear that a prosecutor’s use of a criminal defendant’s presence at trial to impeach his credibility is misconduct. Buggs, 581 N.W.2d. at 341. As in Swanson, the Buggs court explicitly wrote that the prosecutor’s commentary “[rose] to the level of inappropriate conduct,” but went on to find the “inappropriate conduct” non-prejudicial. Id. at 340. The only difference between the two cases is that Swanson was a harmless error case where Buggs was a plain error case, a distinction that is irrelevant to the determination of whether the prosecutor’s conduct was misconduct. Moreover, the Swanson court did not indicate it was changing the standard for determining improper argument. We conclude that the best reading of the two cases is that Swanson does not depart from, but rather affirms and complements the court’s decision in Buggs.

Even if Swanson did mark a departure from Buggs, respondent’s claim, that the prosecutor’s conduct was not plain error because Swanson was decided after appellant’s trial, finds little support in supreme court caselaw. Here, appellant’s reliance on State v. Baird, 654 N.W.2d 105 (Minn. 2002), is well placed. In Baird the court determined that a district court jury instruction was clearly erroneous, even though the basis for that conclusion was established after Baird’s trial. The Baird court wrote that for error to be plain “it is sufficient that the error is plain at the time of the appeal.” Id. at 113 (quotation omitted). See also Griller, 583 N.W.2d at 741 (citing Johnson v. United States, 520 U.S. 461 (1997), for the proposition that the second prong of the plain error test is met if “the error is plain at the time of the appeal”).

Baird is directly on point and makes clear that regardless of whether Swanson departed from Buggs, the prosecutor’s statements were plain error. Here, where the prosecution put forth no specific facts to support an inference of fabrication, and the prosecutor clearly used appellant’s constitutionally protected right to be present at trial to impeach his credibility, the prosecutor’s statements constitute misconduct. See State v. Mayhorn, 720 N.W.2d 776, 790-91, (Minn. 2006) (“Because there is no evidence of actual tailoring, we conclude that the prosecutor’s remarks regarding Mayhorn’s opportunity to tailor his testimony constituted misconduct.”).

Because we have determined that the prosecutor’s statements were plain error, next we must consider whether the prosecutor’s misconduct was prejudicial under the third prong of the plain error test. The defendant no longer bears the burden of persuasion on the third prong; instead the state must show that “there is no reasonable likelihood that the absence of the misconduct in question would have had a significant effect on the verdict of the jury.” Ramey, 721 N.W.2d at 302 (quotation omitted).

To determine whether the prosecutor’s misconduct affected the jury’s verdict we have generally considered several factors. The standard of review provides that the failure of the appellant to object at trial “weighs heavily” in our determination of whether to reverse for prosecutorial misconduct. Id. at 297. Here, appellant not only failed to object, but also responded to the prosecutor’s argument in his own closing argument, limiting the effect of the prosecutor’s misconduct.

In addition, the prosecutor’s misconduct was not pervasive. See State v. Glaze, 452 N.W.2d 655, 662 (Minn. 1990) (holding that “remarks [were] isolated and not representative of a closing argument when reviewed in its entirety”). Appellant’s presence at trial was not a significant theme during the prosecutor’s cross-examination of appellant, or during closing argument. The prosecutor’s statements during the principal closing argument focused on the credibility of appellant’s testimony by permissible means, arguing that the jurors should ask themselves whether appellant’s story was logical, probable, and believable. See State v. Googins, 255 N.W.2d 805, 806 (Minn. 1977) (“[T]he prosecutor had a right to analyze the evidence and vigorously argue that the state’s witnesses were worthy of credibility whereas defendant and his witnesses were not.”). Only the prosecutor’s minimal questioning on cross-examination, and incidental rebuttal closing argument, impeached appellant with his right to be present at trial.

The strength of the state’s case is another factor decreasing the likelihood that the misconduct influenced the jury’s verdict. See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994). Here, the state’s case was strong. Two eyewitnesses testified that they saw appellant holding a gun. A gun was found in close proximity to appellant. The testimony of Officer Kantorowicz provided strong circumstantial evidence that appellant had possession of a gun. Appellant’s denial was lame. Respondent asserts that even if the prosecutor’s statements were plain error under the facts in this case, these factors make the prosecutor’s statement non-prejudicial. We conclude that the state has met its burden under Ramey to show that the prosecutor’s statements here were non-prejudicial and do not warrant reversal.

Although we conclude that appellant is not entitled to a new trial, because of the important constitutional interests at stake, we warn that in closer cases, commenting on a criminal defendant’s presence at trial to impeach his credibility will risk reversal. The supreme court’s recent decision in Ramey makes clear that prosecutors shoulder the burden of proving plain error is not prejudicial.

II.

The second issue is whether it was reversible error for the prosecutor to describe appellant’s presumption of innocence as a cloak that is taken from appellant once the state proves his guilt beyond a reasonable doubt. “The presumption of innocence is a basic component of the fundamental right to a fair trial.” State v. Bowles, 530 N.W.2d 521, 529 (Minn. 1995). In multiple cases, the supreme court has held that prosecutorial arguments suggesting that the presumption of innocence is not intended to protect the guilty constitute error. See State v. Thomas, 307 Minn. 229, 231, 239 N.W.2d 455, 457 (1976) (“[H]enceforth it will be grounds for reversal for the court to charge or the prosecutor to argue that a defendant’s constitutional rights are meant to protect the innocent but not to shield the guilty.”) (quotation omitted); State v. Jensen, 308 Minn. 377, 379-80, 242 N.W.2d 109, 111 (1976).

Here, during closing argument the prosecutor said:

Now, when the Defendant walked into the courtroom at the beginning of the trial he was cloaked with the presumption of innocence. He has lost that presumption. The moment the State proved beyond a reasonable doubt that the Defendant was guilty, that cloak was taken from the Defendant.

Appellant relies principally on State v. Bohlsen, 526 N.W.2d 49 (Minn. 1994), to argue that the prosecutor committed prejudicial misconduct. In Bohlsen the prosecutor argued that Bohlsen “no longer enjoy[ed] th[e] presumption of innocence . . . when . . . the jury [was] satisfied that the State . . . proved its case beyond a reasonable doubt.” Id. at 50 n.1 (transcribing the prosecutor’s argument). The supreme court denied Bohlsen’s petition for review, but said that “the argument–which manages to assume the defendant’s guilt while saying that the defendant is presumed innocent–‘mocks’ the presumption of innocence.” Id. at 50. The court found no prejudice to Bohlsen, but cautioned prosecutors that those who make similar arguments in the future risk reversal. Id.

In contrast, respondent argues that the prosecutor’s statements here are more similar to the recent case of State v. Young, 710 N.W.2d 272 (Minn. 2006). In Young, the prosecutor argued:

When the trial began, the Court told you that that young man right there is an innocent man. He was. Until the defense stood up and rested. Because at that time the state had presented to you sufficient evidence to find the defendant guilty of all the crimes that the Court just gave you the—instructions on. He’s no long [sic] an innocent man. The evidence that’s been presented to you by the state has shown you that he’s guilty beyond a reasonable doubt.

Young, 710 N.W.2d at 280. The court concluded that, when read in context, the prosecutor’s argument was simply that “the state had produced sufficient evidence of Young’s guilt to overcome the presumption of innocence, not that he was not entitled to the presumption in the absence of proof beyond a reasonable doubt.” Id. at 280-81. The court held that the prosecutor’s statement was analogous to the standard Minnesota jury instruction. Id. at 281. Accordingly, the prosecutor’s argument was not a misstatement of law and was not error. Id. The court did not distinguish Young from Bohlsen.

It is not clear that the prosecutor’s statements here are any more like the conduct in Young than Bohlsen, or vice versa. However, insofar as the two cases are irreconcilable, the later Young controls. Under Young, the prosecutor’s statement regarding appellant’s presumption of innocence was not plain error, and not misconduct. In this case, as in Young, the prosecutor’s statement was analogous to the instruction the district court gave to the jury orally before the attorneys’ closing arguments, and in writing prior to the jury’s deliberation: “The Defendant is presumed innocent of the charges made against him, and that presumption abides with him unless and until he has been proved guilty beyond a reasonable doubt.” The prosecutor’s argument also accords with Minnesota’s standard jury instruction on the defendant’s presumption of innocence. See 10 Minnesota Practice, CRIMJIG 3.02 (1999).

While analogies may, in some instances, risk misstatement of the law, here the prosecutor’s description of the presumption as a cloak that is removed once the state proves the defendant’s guilt beyond a reasonable doubt is not plain error. We agree with appellant that a criminal defendant’s presumption of innocence is a fundamental tenet of our criminal justice system. We further observe that anything that encourages the jury to think that the presumption disappears during the taking of evidence or that they do not need to consider the presumption during deliberations is a threat to the application of the constitutional presumption and that the prosecutor should avoid imprecision in discussing the presumption. But we cannot conclude that a prosecutor’s description of the presumption is misconduct when it is consistent with a contemporaneous supreme court decision.

We conclude that the prosecutor’s description of appellant’s presumption of innocence did not constitute misconduct in this case.

Affirmed.